Commonwealth v. Akara (and 17 companion cases) (Lawyers Weekly No. 10-092-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑10229 COMMONWEALTH vs. CHIMEZIE AKARA (and seventeen companion cases[1]). Suffolk. January 11, 2013. ‑ May 21, 2013. Present: Spina, Cordy, Botsford, Gants, & Duffly, JJ. Homicide. Joint Enterprise. Accessory and Principal. Armed Assault with Intent to Murder. Assault and Battery by Means of a Dangerous Weapon. Firearms. Evidence, Joint venturer, Relevancy and materiality, Bias, Statement of codefendant. Witness, Bias. Practice, Criminal, Trial of indictments together, Instructions to jury, Argument by prosecutor, Comment by codefendant’s counsel, Argument by counsel, Capital case, Confrontation of witnesses. Constitutional Law, Confrontation of witnesses. Indictments found and returned in the Superior Court Department on December 5, 2003. The cases were tried before Thomas E. Connolly, J. Brownlow M. Speer, Committee for Public Counsel Services, for Andre Green. Kevin S. Nixon for Chimezie Akara. Kathleen Celio, Assistant District Attorney (Sarah H. Montgomery, Assistant District Attorney, with her) for the Commonwealth. DUFFLY, J. Shortly before 8 P.M. on the evening of February 5, 2003, Philip Gadsden, who was traveling on a Massachusetts Bay Transportation Authority (MBTA) subway train, was threatened with a gun by one of two passengers standing together in the aisle. While the train was pulling into the Massachusetts Avenue MBTA station, Gadsden moved down the car away from the man pointing the gun and yelled to other passengers that there was a gun on the train. As the passengers rushed out of the train, two shots were fired in Gadsden’s direction. One bullet lodged in a guitar case that was being carried over the shoulder of a fleeing passenger. The second bullet pierced the abdomen of a female passenger, Hawa Barry, who was thirty-six weeks pregnant. The bullet passed through her unborn child, who was born alive before succumbing to his injuries. The defendants, Chimezie Akara and Andre Green, were indicted for murder in the first degree and other related assault and firearms offenses several months after the shootings, based on videotape surveillance images from cameras at two MBTA subway stations, interviews with Gadsden and more than a dozen passengers on the train, and statements by witnesses who spent time with the defendants both before and after the shootings. The Commonwealth’s theory at trial was that the shootings had been committed as part of a joint venture in which one of the […]